Director of Public Prosecutions (Cth) v Aisbett

[2009] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA	No 805 of 2007
	v
MARK ANDREW AISBETT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA	No 804 of 2007
v
ANTONIO GIAMPAOLO

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JUDGES:	BUCHANAN and DODDS-STREETON JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2009
DATE OF JUDGMENT:	24 July 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 172
JUDGMENT APPEALED FROM:	R v Aisbett and R v Giampaolo (Unreported, County Court of Victoria, Judge Bourke, 24 August 2007)

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Criminal law – Sentence – Crown appeal – Attempting to possess a prohibited import being ecstasy – Sentence of six years’ imprisonment with a minimum term of four years’ imprisonment not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Gurvich	Solicitor for the Commonwealth Director of Public Prosecutions (Ms L McLeod)
For the Respondent Aisbett	Mr R Richter QC with Mr M J Croucher	Yianoulatos Lawyers
For the Respondent Giampaolo	Mr T M Forrest QC	Yianoulatos Lawyers

BUCHANAN JA:

1. After a trial in the County Court, the respondents were found guilty of a charge of attempting to possess a prohibited import, namely, no less than a commercial quantity of ecstasy, contrary to the provisions of the Customs Act 1901. Following a plea, the respondents were each sentenced to be imprisoned for a term of six years, with a minimum term of four years' imprisonment, before the respondents were to be eligible for parole.

1. The appellant has appealed against the sentences on the grounds that the sentences were manifestly inadequate.  In particulars of the ground of appeal, the appellant alleges that the sentencing judge failed to give sufficient weight to the seriousness of the offence, the principle of deterrence, and the quantity of ecstasy which the respondents attempted to possess.

1. On 12 April 2005, a container carrying ceramic tiles from Italy arrived at the Melbourne docks.  In the pallets of tiles were secreted in excess of five million tablets of ecstasy, weighing in all more than 1.2 tonnes.  Subsequently, an analysis revealed that the weight of pure ecstasy was approximately 500 kilograms, which is 1,000 times the weight of a commercial quantity of ecstasy.  Evidence was led at the trial that the value of the ecstasy was between $150 million and $350 million, although it would appear that the wholesale value of the ecstasy may have been as little as $15 million. 

1. The ecstasy was discovered by Australian Customs officials, who substituted tablets made of harmless material for the ecstasy.  Two days after it arrived in Melbourne, the container was transported by truck to a warehouse in Thomastown.  Members of the Australian Federal Police Force kept the container under surveillance and arrested the respondents after they had taken pallets from the container and were in the process of unpacking the tablets. 

1. The sentencing judge accepted that neither respondent played a role in the importation of the ecstasy.  Aisbett was recruited on 13 April 2005 and Giampaolo was recruited on the morning of 14 April 2005 by Aisbett.  Neither respondent was involved in removing the ecstasy from the docks.  The work which they agreed to perform was to unpack the pallets and place the tablets in a van driven to Thomastown by others.  The respondents were supplied with binoculars, gloves, bolt cutters, a mobile phone and other equipment to carry out their task.  The sentencing judge said that he was not satisfied beyond reasonable doubt that the respondents knew the size of the shipment, although they did know that it was significantly more than the minimum weight for a commercial quantity. 

1. At the trial, the respondents gave evidence that they were each to receive a sum of $1,500 as payment.  The sentencing judge said that he did not accept that evidence, but there was no evidence as to the size of their reward.  His Honour said that he accepted that the respondents were not to receive a major share of the profits. 

1. Aisbett is now 40 years old.  His father died when he was very young, and the respondent is now the main support of his mother.  After he left school, Aisbett completed an apprenticeship as a fitter and turner, and thereafter worked in the printing trade as a fitter and turner.  He has also worked as a gym instructor, a wine exporter and an abalone diver.  The respondent was married in 1995.  The marriage was short-lived and the respondent formed a new relationship with another woman and has four children from that union. 

1. The respondent had 12 prior convictions from four court appearances, including convictions for assault, causing injury intentionally or recklessly, affray, armed robbery and theft.  The convictions had led to periods of imprisonment.  The respondent has used drugs including marijuana, amphetamine and cocaine since he was a teenager.  The respondent's mother gave evidence in the course of the plea, saying that the respondent was caring and gentle and had been supporting her and older members of her family.  A report by a psychologist was tendered in the course of the plea.  The psychologist reported that testing showed that the respondent had an intelligent quotient of 120, revealing superior intellectual capacity.  The sentencing judge noted that the respondent completed a number of courses in prison and successfully studied VCE level English and mathematics. 

1. Giampaolo is 56 years old.  His father was a market gardener who had four other children.  The respondent's mother, who lives at Swan Hill, is in poor health.  The respondent visits her regularly.  The respondent left school in year 10 to work in his father's market garden.  At the age of 27 years he went to Hong Kong, where for the next ten years he was engaged in selling produce from the family property and livestock.  The respondent was subsequently engaged in work at the Footscray wholesale fruit and vegetable market and in raising cattle.  The respondent was married in 1981.  The couple have three daughters, the youngest aged 22 years.  In 2002 the respondent suffered a stroke, leaving him with weakness down his left side and blurred vision.  He suffered another stroke in 2006.  A psychologist reported to the court that specific testing revealed that the respondent was of below average intellectual capacity. 

1. The respondent had a number of prior convictions, two related to drugs.  In 1980 he was sentenced to be imprisoned for a term of six months for possessing cannabis for the purpose of dealing and trading, and in 1997 he was sentenced to be imprisoned for a term of five years for trafficking in cannabis.

1. Counsel for the appellant emphasised the seriousness of the offence, which he submitted was not reflected by the sentences imposed upon the respondents.  The maximum custodial sentence fixed by the legislature was life imprisonment.  The quantity of the drug was significant.  There were in excess of five million tablets weighing over 1.2 tonnes.  Their potential value was very high.  At the time, the shipment was the largest detected importation of ecstasy into Australia. 

1. There must be set against the undoubted gravity of the offending represented by the importation the limited role which the respondents played in it.  Counsel for the appellant sought to meet this point by relying upon authorities for the undeniable proposition that the drug trade depends upon the performance of menial tasks and accordingly the principle of general deterrence remains important in sentencing those engaged in such tasks.[1]  None the less, the contrast between persons hired to unpack drugs and load them in a van on the one hand and those who plan and arrange the importation on the other hand is marked.  Labour to perform menial tasks can always be hired.  The principal effect of sentencing concentrated on deterrence is likely to be an increase in the cost of that hire.  In this regard it is significant that neither respondent knew the precise quantity of ecstasy in the container.  They had nothing to do with choosing the quantity or putting it in the container.  As far as they were concerned, it was a matter of chance that the importation involved the largest quantity of ecstasy intercepted in Australia to that date. 

   [1]See, for example, R v Tang [1998] 3 VR 508, 524-5; R v Nui (2000) 1 VR 579, [7].

1. The gravity of the crime in which an offender participates is not the only factor which determines his culpability.  As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle. [2]

[2](2001) 185 ALR 233, 251.

1. I think that comparing the facts of one case with another is an exercise of very limited value.  Nevertheless, some guidance appeared to be obtained by the sentencing judge from the decision of this Court in R v Franco[3].  In that case, the offenders were hired to unload a shipment of three tonnes of cannabis resin concealed in a shipping container carrying tile.  The drugs had a very large potential value of up to $147 million.  The offenders pleaded not guilty and were convicted after a trial.  The Court allowed the offenders' appeals against sentence.  Franco, who was involved in clearing the container through Customs and recruiting and organising his co-offenders, was sentenced to be imprisoned for a term of seven years with a non-parole period of four years.  Those who were recruited to unload the cannabis were sentenced to be imprisoned for a term of five-and-a-half years with a non-parole period of three years' imprisonment.  I do not think that the

sentencing judge erred in having regard to the decision in that case, and in fact no attack was made here upon the sentencing practices which exist in this state. 

[3][2006] VSCA 301.

1. The constraints upon a court entertaining an appeal by the Crown against sentence are well known.  An appellate court will not interfere with a sentence merely because the members of the court think that it is less than they would have imposed.  Rather, the court will only intervene when material error in reasoning is discerned or where there is such inadequacy in sentence as itself to denote error.[4]  As this Court said in Director of Public Prosecutions v Johnston:

It is not merely a question of concluding that a sentence is insufficient.  It must be such as to establish clear and egregious inadequacy, as a sentence must be so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.[5]

[4]See DPP v Whiteside (2000) 1 VR 131; Griffiths v R (1977) 137 CLR 293; Malvaso v R (1989) 168 CLR 227; R v Clarke [1996] 2 VR 520.

[5](2004) 10 VR 85, [28]. See also DPP v Bright [2006] VSCA 147.

1. I think that the Crown's case here falls short of meeting those exacting requirements, even having regard to the undoubted gravity of the offence judged objectively.  Accordingly, I would dismiss the appeal.

DODDS-STREETON JA:

1. I agree with the presiding judge that the appeal should be dismissed.  The sentences imposed may be seen as lenient given each respondent's prior convictions and the relative worth of the compelling mitigating factors.  Nevertheless, unless this Court fell into error in Franco, an authority on which the sentencing judge properly relied, and the sentences imposed in that case were inadequate, in the present cases, despite the weight of the drugs, the prior convictions and absence of pleas, it cannot be concluded that the sentences were manifestly inadequate, much less that they bespoke the degree of inadequacy or error necessary to justify curial intervention on a Crown appeal. 

1. It was not a ground of appeal, nor was it contended, that Franco was in error.  Although the appellant submitted, with some force in my view, that there is a tension between Franco and New South Wales authority, notably R v Kevanagh[6], for the reasons advanced by the respondents, this case is not in my view an appropriate vehicle for exploring that issue, or whether, if there is conflict, Kevanagh should be preferred.

   [6](2004) 148 A Crim R 155.

HANSEN AJA:

1. I agree with their Honours, for the reasons that they give, that the appeal should be dismissed.

BUCHANAN JA:

1. The order of the Court will be that the appeal is dismissed.

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